Lewski v Australian Securities & Investments Commission [2016] FCAFC 96

FEDERAL COURT OF AUSTRALIA

Lewski v Australian Securities & Investments Commission [2016] FCAFC 96 Appeals from: Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342 Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) [2014] FCA 1308

File numbers: VID 752 of 2014 VID 753 of 2014 VID 783 of 2014 VID 784 of 2014 VID 795 of 2014

Judges: GREENWOOD, MIDDLETON AND FOSTER JJ

Date of judgment: 14 July 2016

Catchwords: CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD – statutory duty to act in best interests of members – statutory duty to exercise care and diligence – statutory duty not to make improper use of position to gain advantage – statutory duty to take all reasonable steps to comply with scheme constitution CORPORATIONS – members' rights – whether right to have scheme administered according to existing constitution is a "members' right" under s 601GC – failure to consider members' right to have scheme administered according to existing constitution – amendment invalid as outside power CORPORATIONS – related party transaction in managed investment scheme – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers' honest belief that constitution contain provision allowing payment CORPORATIONS – company procedure – reconsideration of earlier decisions – whether conduct amounts to or conveys assent to a resolution CONTRACT – deeds – when does an undated deed come into effect – intention of the parties to the deed